N.M. Stat. § 52-1-22 (2026)

As used in the Workers' Compensation Act, unless the context otherwise requires,
where any employer procures any work to be done wholly or in part for him by a
contractor other than an independent contractor and the work so procured to be done is
a part or process in the trade or business or undertaking of such employer, then such
employer shall be liable to pay all compensation under the Workers' Compensation Act
to the same extent as if the work were done without the intervention of such contractor.
The work so procured to be done shall not be construed to be "casual employment".

History: 1953 Comp., § 59-10-12.15, enacted by Laws 1965, ch. 295, § 15; 1989, ch.
263, § 16.

                                    ANNOTATIONS

Special employer and statutory employer distinguished. — The special employer
doctrine applies to situations where an employee of one employer, the general
employer, works temporarily for another employer, the special employer and typically
arises where a labor contractor or a labor service provides temporary workers to other
employers. The statutory employer doctrine applies to situations where an employer
must procure work to be done by a contractor other than an independent contractor and
the work must be a part of the trade or business of the employer and typically arises
where an employer procures work to be done for him by a contractor. The conclusion
that the statutory test is not met does not foreclose the court from considering whether
the special employer test is applicable. Hamberg v. Sandia Corp., 2007-NMCA-078, 142
N.M. 72, 162 P.3d 909, aff'd, 2008-NMSC-015, 143 N.M. 601, 179 P.3d 1209.

Analysis of special employer and statutory employer distinction. — Cases
involving statutory employers must be analyzed in terms of the dual test of Section 52-
1-22 NMSA 1978 from the perspective of the relationship between the contracting
employer and the employer of the worker as well as from the perspective of the type of
work being done. When analyzing the relationship between the contracting employer
and the worker, the issue will generally not be whether the contracting employer is a
statutory employer, but rather whether the contracting employer is a special employer,
borrowing employer, or regular employer. Rivera v. Sagebrush Sales, Inc., 1994-NMCA-
119, 118 N.M. 676, 884 P.2d 832, cert. denied, 118 N.M. 585, 883 P.2d 1282.

Purpose of section. — The primary purpose of the statutory-employer provision is to
make the general or prime contractor liable for compensation benefits to employees of
its subcontractor; the second function is to allow a general or prime contractor who
qualifies as a statutory employer to take refuge under the Workers' Compensation Act's
exclusivity provision, which makes it immune from a tort action. Romero v. Shumate
Constructors, 1994-NMCA-137, 119 N.M. 58, 888 P.2d 940, rev'd in part on other
grounds sub nom. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916
P.2d 1324.

The purpose of the provision on casual employment is to make clear that, once the two
key requirements of statutory employment are met, i.e., that (1) the subcontractor in
question is not an independent contractor and (2) the subcontractor's work is "part or
process in the trade or business or undertaking" of the general contractor, such work
will not be deemed casual employment as to the general contractor. Romero v.
Shumate Constructors, 1994-NMCA-137, 119 N.M. 58, 888 P.2d 940, rev'd in part on
other grounds sub nom. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657,
916 P.2d 1324.

Employer-employee relationship, to which the act applies, is one created by
contract between the parties; consequently, if the employer in this case seeks to avail
itself of the Workmen's (Workers') Compensation Act as a bar to a common-law action,
then it must show a valid contract of employment between it and the minor employee.
Maynerich v. Little Bear Enters., Inc., 1971-NMCA-079, 82 N.M. 650, 485 P.2d 984.

Qualification as statutory employer. — To qualify as a statutory employer under this
section, a contractor must meet two express conditions. First, the general contractor
must procure work, wholly or in part, to be done by a contractor other than an
independent contractor. Second, the work to be done must be a part or process in the
trade, business, or undertaking of the general contractor. Quintana v. University of Cal.,
1991-NMCA-016, 111 N.M. 679, 808 P.2d 964, cert. denied, 111 N.M. 678, 808 P.2d
963.

In enacting this section, the legislature expressed its intent to afford immunity under the
Workers' Compensation Act to statutory employers. Meeting the statute's requirements,
however, is a prerequisite to being considered a statutory employer. Quintana v.
University of Cal., 1991-NMCA-016, 111 N.M. 679, 808 P.2d 964, cert. denied, 111
N.M. 678, 808 P.2d 963.

It is the relationship between the general contractor and the employer of the claimant
that is dispositive of whether the general contractor is a statutory employer, not the
relationship between the general contractor and the claimant. Romero v. Shumate
Constructors, 1994-NMCA-137, 119 N.M. 58, 888 P.2d 940, rev'd in part on other
grounds sub nom. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916
P.2d 1324.

Casual employment ordinarily deals with the relationship between the claimant's alleged
immediate employer and the claimant. Romero v. Shumate Constructors, Inc., 1994-
NMCA-137, 119 N.M. 58, 888 P.2d 940, rev'd in part on other grounds sub nom. Harger
v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324.

A general contractor seeking to qualify as an employer of a subcontractor's employees
under this section, and thus qualify for immunity from tort, must show that the
subcontractor is not an independent contractor and that the work so procured to be
done is a part or process in the trade or business or undertaking of the general
contractor; a general contractor seeking immunity as an employer under this section
may not rely solely on the fact that it has provided workers' compensation coverage to
its subcontractor's employees by paying the cost of that coverage. Chavez v. Sundt
Corp., 1996-NMSC-046, 122 N.M. 78, 920 P.2d 1032.

The word "undertaking" is defined as something undertaken: a business, work or
project which one engages in or attempts; the deepening of an irrigation pond was an
undertaking within the ordinary meaning of that term. Abbott v. Donathon, 1974-NMCA-
073, 86 N.M. 477, 525 P.2d 404.

New Mexico is unique in having added the words "or undertaking" to the commonly
used phrase "part of the trade or business"; even if a given kind of work is not "part or
process of the trade or business" of the contractor, it meets the second requirement of
this section if it is part of the contractor's "undertaking." Romero v. Shumate
Constructors, Inc., 1994-NMCA-137, 119 N.M. 58, 888 P.2d 940, rev'd in part on other
grounds sub nom. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916
P.2d 1324.

Test for independent contractor. — In keeping with the purpose of the Workers'
Compensation Act and the particular purpose of the statutory-employer provision, both
the right-to-control test and the relative-nature test must point to independence before a
contractor will be deemed an independent contractor. Romero v. Shumate Constructors,
Inc., 1994-NMCA-137, 119 N.M. 58, 888 P.2d 940, rev'd in part on other grounds sub
nom. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324.

The term "independent contractor" in this section should be construed as a common law
term; in determining whether a person is or is not an independent contractor, the
principal consideration is the right to control. It is the character of the control that is the
distinction between employees and independent contractors; the employer may control
the result the independent contractor achieves, but when the control descends to the
details or to the means and methods of performance, then the independent contractor
becomes a servant or employee. Harger v. Structural Servs., Inc., 1996-NMSC-018,
121 N.M. 657, 916 P.2d 1324.

"Relative nature of work" test is a better test than "right to control" test in
determining whether workmen's (workers') compensation claimant was an employee or
independent contractor. "Relative nature of work" test examines, first, the character of
plaintiff's work or business, and second, the relationship of claimant's work to the
purported employer's business. Therefore, claimant hired by insurance company as
"storm trooper" or "catastrophe adjuster" was an independent contractor not eligible for
workmen's (workers') compensation funds, even though insurance company had right to
fire him at any time, where claimant received a fee rather than wages, paid his own
personal expenses, set his own hours, used his own equipment, was not subject to
deduction for withholding tax or social security, set his own methods of investigation and
could refuse to take claims. Burton v. Crawford & Co., 1976-NMCA-070, 89 N.M. 436,
553 P.2d 716, cert. denied, 90 N.M. 7, 558 P.2d 619.

Whether employment is in usual course of employer's business is decisive
question. Where the business is ranching, water is a prime necessity and here it is to
be produced by means of windmills. It follows that a windmill repairman's employment is
covered by the act. Bailey v. Farr, 1959-NMSC-071, 66 N.M. 162, 344 P.2d 173
(decided under former law).

Trade or business not separate concepts. — In considering whether a workman
(worker) was or was not an independent contractor, where the work to be done was an
"undertaking," the court is not concerned with trade or business as separate concepts.
Abbott v. Donathon, 1974-NMCA-073, 86 N.M. 477, 525 P.2d 404.

Not casual employment where necessary part of process. — Where the decedent
was hauling away dirt obtained from the excavation of a pond by defendant, and the
hauling of dirt was a necessary part of the process of excavation, the decedent was not
a casual employee. This work, which was not casual employment under this section,
was also not casual employment under Section 52-1-16 NMSA 1978. Abbott v.
Donathon, 1974-NMCA-073, 86 N.M. 477, 525 P.2d 404.

Injured work-release program prisoner deemed "employee". — A prisoner who
voluntarily participated in a work-release program and was injured while under the
direction of a private business was an employee of that business and thus entitled to
workers' compensation benefits. Benavidez v. Sierra Blanca Motors, 1995-NMCA-140,
120 N.M. 837, 907 P.2d 1018, rev'd in part on other grounds, 1996-NMSC-045, 122
N.M. 209, 922 P.2d 1205.

Applicability of exclusive remedy provisions. — An employer responsible for paying
workers' compensation benefits under this section may claim the immunity conferred by
the exclusive remedy provisions of Sections 52-1-6, 52-1-8 and 52-1-9 NMSA 1978,
provided the employer has complied with the insurance provisions; if an employer has
failed to comply with the insurance provisions, the injured employee may sue under this
chapter or, in the alternative, sue in tort. Harger v. Structural Servs., Inc., 1996-NMSC-
018, 121 N.M. 657, 916 P.2d 1324.

Law reviews. — For note, "Trends in New Mexico Law: 1994-95: Workers'
Compensation Law – New Mexico Clarifies the Meaning of a Special Employer as
Distinct from a Statutory Employer: Rivera v. Sagebrush Sales, Inc.," see 26 N.M. L.
Rev. 655 (1996).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation
§§ 121 to 125, 133, 207.

99 C.J.S. Workmen's Compensation §§ 69, 70, 90 to 111, 294.